NYPD Accused of Entrapment and Warrantless Searches at Immigrant-Owned Shops

Monday, April 25, 2016
(photo: Spencer Platt, Getty Images)

By Sarah Ryley for ProPublica and the New York Daily News


An undercover NYPD officer entered the spotless Super Laundromat & Dry Cleaners in Inwood, a largely Dominican neighborhood at the northernmost tip of Manhattan. He made his rounds through the store, hawking what he said were stolen gadgets — an iPhone, iPad Mini and iPad.


One man took the bait, agreeing to shell out $200 for all three. He was arrested during the May 2013 sting, and the trouble seemed to end there.


But seven months later — the week before Christmas — cops arrived at the laundromat again. This time, they slapped a neon sticker on the front door declaring in block letters: “RESTRAINING ORDER.”


They presented the store’s owner, Sung Cho, with a daunting slew of legal papers, threatening to shutter the laundromat for a year and auction off everything inside. Their justification, the cops said: The store was being “used to facilitate criminal possession of stolen property.”


Cho was shocked. The 54-year-old Korean immigrant said he had operated his shop for six years without a problem. He says he had even helped cops solve neighborhood crimes, giving them video footage of the sidewalk outside his store.


To build its case, the NYPD cited the May 2013 arrest, along with one other undercover sale of an iPad months earlier for $100 and tips that people inside the laundromat were buying stolen property. Cho said police never told him about the iPad sale or the tips. 


“It cannot be denied that this subject premises is a serious public nuisance,” the NYPD wrote in boilerplate language. “As such it should not be allowed to remain open even one more day.”


Cho was facing a nuisance abatement action, civil lawsuits intended to uproot persistent illegal activities by targeting the locations they stem from. Nuisance abatement became city law in the 1970s as a tool to clean up the sex industry in Times Square.


But today it’s being used quite differently — often ensnaring legal mom-and-pop shops that are almost exclusively located in minority neighborhoods, a Daily News and ProPublica investigation found.


Owners interviewed for this story, all first- and second-generation immigrants, say they felt entrapped and then strong-armed into signing settlements with steep fines and onerous conditions. The stipulations often allow for sweeping surveillance, such as warrantless searches and unbridled police access to video cameras. They also permit the NYPD to automatically fine and padlock a store should another allegation arise — all without giving merchants the opportunity to defend themselves in court.


An examination by the Daily News and ProPublica of 646 cases filed by the NYPD against businesses over an 18-month period beginning in 2013 found:


Nine out of 10 nuisance abatement actions were against businesses located in neighborhoods where most of the residents are minorities.


The majority of the cases, 58 percent, involve alcohol violations, often against bodegas or liquor stores accused of selling to underage buyers working for the police. A large share of the alcohol cases were concentrated in just a few police precincts. Other precincts in the city with equal or more underage alcohol sales were rarely hit.


Merchants often endure a kind of double jeopardy. By law, the NYPD forwards every arrest or summons for alcohol violations to the State Liquor Authority, which can issue thousands of dollars in fines and revoke a business’ license to sell alcohol. The NYPD can then also bring nuisance abatement actions based on the same allegations, but only does so against some businesses.


The police begin nearly every case with a secret application to a judge requesting an order closing the business while the case is being decided, and before the owner has had the opportunity to appear in court. Judges approved the closure requests 70 percent of the time.


By law, the first court date must come within three business days after the order has been served. But the NYPD frequently files its closure requests on Thursdays or Fridays, forcing shops to stay closed through the weekend and causing a greater loss of income.


NYPD lawyers justify these emergency orders by claiming the illegal activity at the location is ongoing and poses an immediate threat to the community. But the Daily News and ProPublica found the NYPD didn’t get around to filing cases until, on average, five months after the last offense cited.


Most cases resulted in settlements, 333 of which allow the NYPD to conduct warrantless searches. In 102 cases, the owner agreed to install cameras that the NYPD can access upon request. Another 127 settlements require storeowners to use electronic card readers that store customers’ ID information, also available to the NYPD upon request.


The city’s public advocate, Letitia James, called the cases “a form of legal harassment and coercion.” James said she was troubled by how the NYPD’s “selective enforcement” was focused on minority communities.


A state Supreme Court judge, who has presided over scores of such cases, said prosecuting the shop owners is a waste of city resources since the state already deals with alcohol offenses.


“You never see the white bar owner from the Meatpacking District in here; it’s always some bodega owner from Uptown,” said the judge, who asked not to be named. “It’s a complete double standard.”


The NYPD has embraced nuisance abatement actions as part of its controversial “broken windows” strategy of aggressively pursuing quality-of-life offenses in order to combat more serious crime.


The NYPD did not respond to questions for this story.


After the Daily News and ProPublica’s investigation earlier this year into nuisance abatement cases against residences, the de Blasio administration defended them as an important tool to keep neighborhoods safe, while offering some procedural reforms.


The city’s top lawyer, Zachary Carter, said in a statement after the investigation that the city would review its practices to ensure that residents who haven’t been accused of a crime would not be locked out of their homes without first getting a court appearance. (The number of cases filed by the NYPD has since dropped significantly.)


But Carter said the use of the law against businesses is an entirely separate issue.


“The commercial nuisance abatement program, which has proven effective in closing down illegal clubs where violence occurs and illegal drugs such as K2 are sold, has enjoyed widespread support from affected communities and their elected representatives,” he said in the statement.


His spokesman added that the administration has been working to shorten the amount of time it takes to bring a case after the last violation.


Police building nuisance abatement cases in Inwood had been responding to complaints about unruly bars, bodegas that were selling kids cups of liquor, and thieves who hawk their wares, said Stephan Feldheim, the president of the 34th precinct’s community council.


Cho’s laundromat was just one of 67 businesses hit with nuisance abatement actions in the 34th during the 18-month period analyzed by the Daily News and ProPublica. The precinct ranked second citywide over that time.


Once served with nuisance abatement actions, business owners are faced with a choice. They can fight the case and remain shut down until it’s resolved, earning no income. Or they can agree to the NYPD’s demands, sign a settlement, and reopen. As a result, cases tend to get resolved very quickly.


A judge denied the cops’ request to close Cho’s laundromat, but Cho was still left with an ominous-sounding restraining order.


“They say that I facilitate these activities, prove me so. How did I facilitate these things?” Cho told the Daily News. “In my view it was total entrapment.”


Still, Cho signed a deal a few days later to lift the order. It left him feeling as if a guillotine is forever hanging over his business.


He agreed to pay a $2,000 fine, maintain cameras that the NYPD can access at any time, and to allow the police to conduct warrantless searches. If anyone is even accused of breaking the law at his business again — whether a store employee or not — he faces escalating penalties: closures that would increase from 30 days to 60 days to 90 days to a full year with each alleged offense; fines climbing as high as $15,000.


Perhaps most damaging of all, the terms continue in perpetuity, even if the business changes hands.


“My business is essentially worthless,” Cho said. “What did I do to deserve it?”


The NYPD’s nuisance abatement cases over alcohol violations largely targeted businesses concentrated in the heavily minority precincts covering East Harlem, and Inwood and Washington Heights, in Manhattan; Wakefield in the Bronx; and Flushing in Queens.


But state records show other precincts had an equal or greater number of alcohol cases forwarded to the state during the same time period. That includes precincts in the East Village and Lower East Side in Manhattan, Bushwick in Brooklyn, and Elmhurst and Jackson Heights in Queens, all of which only saw a handful of nuisance abatement cases. Some precincts with few nuisance abatements have large minority populations; others are majority white.


The NYPD often holds up unruly bars and clubs where drunken patrons resort to violence to settle their beefs as examples of its nuisance abatement efforts.


The NYPD had supported a 2007 amendment that would have added murders and felony assaults to the list of offenses that could lead to an action. But after opposition from the nightlife industry, the amendment failed. So the police say they turn to buy-and-busts to close these places.


“We had an incident in the Bronx back in December where one of these clubs, there was a massive shooting where bystanders were injured and killed,” said NYPD Deputy Commissioner Lawrence Byrne at a press conference in February. “That’s a club we would close.”


However, most of the cases citing alcohol violations reviewed by the Daily News and ProPublica during the 18-month period do not mention violence or complaints of an unruly atmosphere.


In the 23rd Precinct in East Harlem, for instance — a largely Hispanic area — only one of the 32 cases citing alcohol violations mentions fights. The cases are almost entirely against bodegas and liquor stores.


Many of the workers at these places told a similar tale — that somebody who looked of age came in when the store was busy, often hiding what they were buying, quickly tossing money at the cashier, then walking out.


“It was like 3 o’clock, three schools had let out. It was crowded, it was crazy,” said Rosemary Fermin, 31, who was arrested in 2012 while working at her dad’s store, Tu Casa Deli Grocery. “He looked very old. I didn’t have time to ask for nothing. He just put the money on the counter and walked out.”


In a video from another undercover buy in 2015, a lanky man approached the counter at Maria Luna’s deli on Lexington Avenue during the afternoon rush. He quickly handed her a dollar while palming a can to obscure it, and walked out. Fermin was arrested minutes later.


Now Luna and her husband said they fear police will come to close their business again.


The couple had three delis in the neighborhood that were all served with nuisance abatement actions around the same time in 2013. Luna said they closed one because they couldn’t bear the financial weight of the combined city and state penalties, along with the lawyers’ fees to fight them. At another store, they had to give up their license to sell beer. At the third, they padlock the beer coolers to protect themselves against another buy-and-run.


Others insisted the undercover used in many of the 2012 and 2013 operations — identified in court filings only by his birthdate, Dec. 5, 1992 — looked to be in his 30s. Some of the workers arrested described the undercover as “big” “burly” “with a beard” and “looked like a construction worker.”


“I’m a mother, I can judge age. I know he was older,” Juana Caballero, 45, a part owner of Mi Mexico Mini Market, insisted. She was arrested in one of the sting operations, in April 2013, and taken to the precinct stationhouse in handcuffs with at least seven other cashiers who all worked at businesses that later faced nuisance abatement actions.


Some weren’t even aware which sale had led to their arrests.


But months later, the businesses faced both penalties from the State Liquor Authority and nuisance abatement actions from the NYPD, over the same alleged sales, records show.


At least a third of the East Harlem businesses agreed in their NYPD settlements to install cameras that the police could access upon request, and half to use the electronic card readers.


No one had stories of the police regularly coming by to tap into their footage. For them, the settlement just meant if they were caught with broken cameras, they would be fined thousands of dollars and shut down for 30 days.


Robert Messner, who heads the NYPD’s Civil Enforcement Unit, which handles the cases, said during an interview with the Daily News in December that his unit does not keep a database of the businesses required to maintain cameras. He said their purpose is to make neighborhoods safer and to help police solve crimes.


“We want everybody to install cameras. We think that’s the greatest,” he said.


Byrne, the deputy commissioner for legal matters, added: “In the city, the detectives, they look at all the cameras. So they walk up and down the block, and they say, ‘Mr. Deli Owner, do you have any cameras? Mr. Newsstand Owner, do you have any cameras? Mrs. Nail Parlor Lady, do you have any cameras? Can we look at your videos? Do you have any footage around 3 a.m. last night where four people got shot in the head in front of your store?’”



Nearly all of the nuisance abatement cases filed against businesses in East Harlem’s 23rd precinct were based on the work of Officer David Ross. He would go from storefront to storefront with an undercover minor, sometimes citing violations against more than 10 stores in a single day, court filings show.


The nuisance abatement law only requires one allegation of an alcohol violation, but the NYPD’s guide for officers states that three violations are necessary for a judge to “entertain the possibility of a closing order.”


So when Ross built his cases, he had the underage auxiliary officer purchase alcohol at each location on three separate occasions. But he only made an arrest after the third purchase.


A retired lieutenant who spoke to the Daily News said he’d never heard of a buy operation that didn’t immediately lead to an arrest or summons.


“That would mean the purpose of those buys was to get a nuisance abatement,” he said.


Asked what had prompted such a high number of nuisance abatement cases in the 23rd Precinct — complaints of problems stemming from drunken minors, for example — Miguel Murphy, a community affairs detective who has worked in the precinct for 18 years, said he wasn’t aware of any particular problem with the issue.


“It’s something that mostly everywhere goes on,” he said. “But has it spiked into a community problem, a frenzy? It hasn’t been in this particular location, this particular precinct.”


But storeowners said the enforcement has felt like a frenzy.


“A lot of storeowners are saying we should unionize and discuss this issue,” Luna said. “They take you, arrested as if you had killed someone.”


Then, they said, owners are left crippled under the financial strain of two sets of penalties — from the city and the state — and fearful the police might strike again.


After Caballero, one of the owners of the Mi Mexico store, was accused of selling beer to underage customers, her business paid an $8,500 fine to the State Liquor Authority. Around the same time, the NYPD served the shop with a nuisance abatement action.


To settle the case, the owners agreed to pay another $2,500 fine, to install cameras and a $1,000 electronic card reader, and to allow the police to make warrantless searches. Caballero said the penalties and lawyer fees have depleted Mi Mexico’s savings account.


The terms of Mi Mexico’s stipulation with the police, signed in October 2013, last for three years and say the business will be automatically closed, without a hearing, for 30 days, the next time someone is accused of violating the law there.


In January, Mi Mexico’s cook, Natividad Mateo, was arrested after an underage auxiliary police officer said Mateo sold him a beer without asking for identification.


Mateo told the Daily News and ProPublica that the officer brought a bottle up to the counter, obscured by a bag of chips, and said it was a Malta, a non-alcoholic malt beverage. She said she charged him $1.75, which is less than the cost of a beer.


She was arrested minutes later, put in a police van, and driven around, trailed by another van, as officers picked up other cashiers. She estimated police arrested 15 cashiers in all.


Mateo pleaded “not guilty.” But because the nuisance abatement law only requires allegations, not convictions, even if Mateo’s case is dismissed, the NYPD can still shut Mi Mexico down for 30 days.


Juventino Sanchez, a relative of Caballero who also owns a stake in the business, said he fears police will come and shut them down over the most recent arrest.


“It doesn’t make sense that we work hard, seven days a week, 15 hours a day, and then they just come and take the money,” he said.


“This time I am not planning to pay. I will just close the store. And after that, if I close the store, I’m going to apply for welfare. I’m going to apply for everything. So they gonna pay me now, right? Because it doesn’t make sense. I am working.”


Shortly after Officer Ross completed the stings that led to the dozens of nuisance abatements in 2013 and 2014, he was promoted to detective, according to court records and his colleague, Detective Murphy. The Daily News was unable to reach Ross for comment.


At the 47th Precinct in the Bronx, which is 91 percent black and Hispanic, storeowners described similar tactics. Police brought 69 nuisance abatement actions over the 18-month period examined by the Daily News and ProPublica, nearly all of which cite alcohol violations.


Jose Castillo, who owned Castillo Grocery, said the undercover auxiliary police officer who came into his store was wearing a hoodie and a hat so you could barely see his face. He said the man grabbed a beer, threw money on the counter, and left before he even had a chance to speak to him.


“It was always the same guy, and you’ll never find out if the guy was a really a minor. They never prove it,” Castillo said.


Sewnarin Jaipersaue, 45, a Guyanese immigrant who owns Oasis Restaurant and Bar, said their bartender was arrested on her first day on the job.


“The police told us later that they sent in a couple,” Jaipersaue recalled. “She was of age, he wasn’t. She bought a drink and gave it to (him).” Records show the police got a closing order on his bar in July 2013, even though it was already closed because the state had declined to renew its liquor license two months earlier.


The area’s city councilman, Andy King, said underage drinking has not been a huge problem in his district, but that stores selling to minors should be punished.


“If it was their child, would they be selling their child something that they know is going to destroy brain cells and can cripple their development?” he asked.


King added that if business owners feel police are targeting them, it’s their responsibility to be especially vigilant.


“If they walk out of the store, then you can call and say you was just robbed. ‘I did not take their money.’ Now it’s on record,” he said. “‘Someone put money on my counter, took a bottle of beer, and walked out of the store, and I didn’t get a chance to card them. I got it on record.’ You gotta protect your business.”


Police Commissioner Bill Bratton has recently voiced support for how his department has handled nuisance abatement actions. But two decades ago, he offered a different perspective.


In a 1995 white paper on Broken Windows policing, Bratton praised the nuisance abatement law as “probably the most powerful civil tool available to police,” but also wrote that he didn’t think it was appropriate to use against legitimate businesses.


Bratton wrote that a similar statute — the Padlock Law — is preferable in these cases because it has much stricter requirements and notice is given to the business owner.


Unlike nuisance abatement, which does not even require an arrest to bring an action, the Padlock Law requires police to make three arrests, one of which leads to a conviction, at a location within a year-long period. The landlord and business owner are given notice that they are at risk of being padlocked throughout the process. The police can only get an order closing the business after an administrative hearing at which all parties have the chance to argue their case.


While Bratton noted these requirements present a “major weakness” in the Padlock Law, he said police wouldn’t want to shut down a legitimate business that could interfere with the neighborhood’s access to services like groceries. “With the padlock action in progress, the police could exert pressure on the store operators to abandon their illegal activity or risk losing their legitimate business,” he wrote.


Bratton also wrote that the State Liquor Authority is best suited to address alcohol violations — even when police have responded to violent incidents at the location.


In 1985, the first year after the Padlock Law was enacted, the New York Times reported that police had successfully used it to root out illegal gambling, narcotics and prostitution at more than 700 locations. That was before the NYPD got permission to initiate nuisance abatement cases in the early 1990s.


When asked about the Padlock Law in December, Messner said the last case filed under it was “15 years ago maybe.”


He said the padlock law “was a creaky old law” that cost a lot of police resources and often resulted in protracted litigation.


“This thing,” Messner said, referring to the nuisance abatement law, “is simple and elegant.”


Additional research and reporting by Pia Dangelmayer, Christine Lee, Andrea Hilbert and Edwin Torres, special to ProPublica.


To Learn More:

The NYPD is Running Stings Against Immigrant-Owned Shops, Then Pushing For Warrantless Searches (by Sarah Ryley, ProPublica and the New York Daily News)

Muslim Surveillance Lawsuits Settle with No NYPD Admission of Wrongdoing or Damages Paid, Just a Promise to Stop Spying (by Tom Hays, Associated Press)

Judge Throws Out Lawsuit against NYPD for Spying on Muslims, Faults the Press for Reporting It (by Noel Brinkerhoff, AllGov)


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